1. Informed Consent to Breech Birth: the Midwifery Relationship
In this presentation I will be speaking about the legal requirements of informed consent to both caesarean section and vaginal breech birth.
Introduction to who I am and my interest in this area
Throughout this part of the presentation, I will be introducing quotes from women in Australia who have had breech presenting babies.
Rhonda Powell BA, LLB(Hons), LLM, DPhil
Lecturer, UC School of Law

2. Guiding Principles
The woman, her baby and family/whanau are at the centre of all processes and discussions
The woman should have continuity of maternity care … regardless of how her care is provided
Ministry of Health Guidelines for Consultation with Obstetric and Related Medical Services (Wellington 2012) (Referral Guidelines)
Some breech mums find themselves between a rock and a hard place: uncomfortable with CS but are either being given no other option OR are concerned that the people available to assist do not have adequate skills and experience supporting VBB
Beauty of NZ LMC role is that NZ midwives can help smooth the ride and prevent women feeling that they’ve fallen through the cracks

3. Consultation for breech
LMC must recommend consultation with a specialist
Three-way conversation and decision-making
The specialist will not automatically assume responsibility for ongoing care
Midwife should consider her experience and scope of practice if woman chooses not to transfer care
(Referral Guidelines)
This relates to both antenatal and intrapartum diagnosis of breech presentation
Midwife potentially open to criticism for recommending VBB, especially at home
If woman has made an informed choice, this will go a long way towards protecting the midwife against criticism
But critical to be very careful to provide balanced information, including information about own skills and experience

4. Informed consent
Code of Health and Disability Services Consumers’ Rights (Code)
Right 6: Right to be fully informed
Right 7: Right to make an informed choice and give informed consent
Includes the right to be told about:
all relevant options, including options not offered by the health service
the evidence base of information (if any)
what most midwives/obstetricians would do
skills and experience of midwives/obstetricians
how to get a second opinion

5. No information, No choice
“The [obstetrician] for my first breech pregnancy told me that no-one offered [vaginal breech birth (VBB)] or [external cephalic version (ECV)]… because it was not safe for the baby or the mother ... He didn't go into any detail about the risks...” (Adelaide)

6. The evidence base Term Breech Trial (TBT) (Hannah, 2001)
Criticisms of TBT
Two-year follow-up to the TBT (Whyte 2004, Hannah 2004)
Retrospective reviews (eg Reitburg 2005, Vlemmix 2014)
Localised studies (eg Goffinet 2006, Borbolla Foster 2014)
Risks of what?
Risks to both current pregnancy and future pregnancies
Chance of a breech presentation in a future pregnancy
Absolute risks rather than relative risks (1 in 100)
(see NICE Guideline CG138 ‘Patient Experience in Adult NHS Services’ )
Use the following principles when discussing risks and benefits with a patient:
personalise risks and benefits as far as possible
use absolute risk rather than relative risk (for example, the risk of an event increases from 1 in 1000 to 2 in 1000, rather than the risk of the event doubles)
use natural frequency (for example, 10 in 100) rather than a percentage (10%)
be consistent in the use of data (for example, use the same denominator when comparing risk: 7 in 100 for one risk and 20 in 100 for another, rather than 1 in 14 and 1 in 5)
present a risk over a defined period of time (months or years) if appropriate (for example, if 100 people are treated for 1 year, 10 will experience a given side effect)
include both positive and negative framing (for example, treatment will be successful for 97 out of 100 patients and unsuccessful for 3 out of 100 patients)
be aware that different people interpret terms such as rare, unusual and common in different ways, and use numerical data if available
think about using a mixture of numerical and pictorial formats (for example, numerical rates and pictograms).[1][QS]

7. Information about breech birth
Evidence
If the TBT is discussed, then the following should also be discussed:
the critique
the two year follow up studies
other studies
how to evaluate studies
Risks, Benefits and Options
External cephalic version
Pre-labour caesarean
Vaginal breech birth
Caesarean when labour starts
Referral elsewhere
Clinical Support
Availability of experienced clinician
Impact this may have on safety
When?
The earlier the better
Undiagnosed breech – variation on same conversation 7

8. Consent in pregnancy
“[A] competent woman … may … chose not to have medical intervention, even though … the consequence may be the death … of the child … or her own death.”
Re MB [1997] EWCA Civ 3093
Right to refuse medical treatment protected by:
Common law tort of battery – right to sue for nominal damages
HDC Code of Rights
New Zealand Bill of Rights Act 1990, section 11 (applies to public authorities only)
Medical treatment includes assessment and diagnosis

9. Coercion for breech Not “offering” any alternative to caesarean
Hospital policies which make no allowance for refusal of caesarean
Misleading information about risks
Threatening to withdraw care
The reason these issues are potential consent issues is that they may form the basis of an argument that consent was not freely given.
These practices could well be in breach of the Code of Rights and lead to disciplinary action

10. Coercion
“The hospital midwives had to transfer me to the OBs who threatened to call child protective services and get a court order to perform a cesarean and then remove my child from my and my husband's care if I didn't "consent" to an elective cesarean...” (USA)
In NZ, coercive behaviour like this could lead to disciplinary action or complaints to HDC
Could potentially be grounds for civil action for battery (although no damages for personal injury) and exemplary damages

11. Refusal of consent
A competent woman may refuse an ECV, CS, information, consultation or referral
Consider own scope of practice or experience
if supporting VBB is outside your scope of practice or experience, it is acceptable to withdraw care (prior to labour)
if continuing care, duty to care to the best of your ability in the circumstances
Document care plan, discussions and response
Duty to assist in an emergency
(See Part 5, Referral Guidelines)

12. Working together for breech
Code of Rights: 4(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services

13. NZ Heath & Disability Commissioner Case 04HDC05503
Woman decided to attempt VBB in hospital
Woman disillusioned with medical staff
Birth plan specified that decisions be made by woman, husband and midwives
Midwives did not
inform medical staff that woman in labour
seek help when problems arose
Baby died
Importance of co-operation and communication

14. Summary Midwives have duties to:
provide full and unbiased information about risks and benefits of ECV, VBB or CS
recommend consultation
Women have rights to:
make an informed choice
give or refuse consent
co-operation amongst providers
Midwives should consider own experience and scope of practice in supporting VBB

15. Training and support
Breech Birth Online Workshop (Maggie Banks):
Become A Breech Expert:
Breech Birth Network:
The Midwife, the Mother and the Breech:
Breech Birth Australia and New Zealand: and